Town and country planning – Outline planning permission – Amendment – Defendant local authority granting interested party permission to amend outline planning permission for phased development – Claimant applying for judicial review – Whether amendment “material” within section 96A of Town and Country Planning Act 1990 – Whether approval of amendment ultra vires section 96A – Application granted
The defendant granted the application of the interested party under section 96A of the Town and Country Planning Act 1990 to make a non-material amendment of an outline planning permission (OPP) for the redevelopment and regeneration of the Aylesbury Estate in south-east London. The OPP provided for discrete phases. The amendment inserted the word “severable” into the description of the development authorised by the OPP. The claimant was a local resident who challenged the defendant’s decision to approve the amendment. She contended that the amendment was “material” and therefore outside the power in section 96A.
The defendant and the interested party submitted that the phases were individually authorised. To that extent, the permission was already severable so that the amendment was “non-material”. Properly construed, the OPP was severable in any event and the amendment was only intended to confirm that position explicitly on the face of the consent.
The claimant argued that, on its true construction, the OPP was not severable and the amendment to make it severable could not be treated as non-material. The purpose and effect of the amendment was to change the bundle of rights granted by the OPP to disapply the Pilkington principle: see Pilkington v Secretary of State for the Environment [1973] 1WLR 1527. Treating the OPP as severable would allow the developer to carry out under a new planning permission a phase of the redevelopment which was physically incompatible with the authorisation conferred by the OPP, without losing the right to carry out further phases under the OPP.
Held: The application was granted.
(1) The section 96A amendment simply inserted the word “severable” into the OPP without providing any explanation as to what was meant by that term in context. There was nothing on the face of the OPP to indicate that the meaning of “severable” was limited. That term could apply to smaller units, down to the authorisation of individual plots or buildings. The permission itself referred to details being submitted for development parcels and sub-plots.
Severance might be used to deal with a part of a legal instrument which was held to be unlawful, as in the law of contract. That usage was also found in planning law, where the court severed an invalid condition in a planning permission which did not go to the root of that consent, but dealt with some incidental or trivial matter, so that the untainted remainder of that consent could be left legally intact: Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 considered.
(2) A detailed planning permission might authorise or require the development approved to be carried out in phases. The Pilkington principle could apply to such a consent. Provisions in a detailed consent for phasing were compatible with that consent being treated as a single planning permission. Consequently, the mere inclusion of phasing provisions in a detailed permission would be insufficient to amount to a “clear contrary indication” that the consent was severed into discrete planning permissions. The same was true of an outline permission.
Furthermore, if the inclusion of phasing provisions were sufficient to sever a planning permission, whether detailed or outline, that could have consequences which nobody involved in seeking or granting that permission would have envisaged, such as the application of the statutory time limits for the implementation of each separate permission. Practitioners would therefore need to carefully consider the possible consequences of seeking to argue that a single planning permission should be treated as severed. Because of such considerations, and the variety of ways in which a permission might be severed, it was important that any decision to grant a severed planning permission be expressed unequivocally. Where that was not done, any contra-indications said to support severance had to be equally clear: Percy Bilton Industrial Properties Ltd v Secretary of State for the Environment [1976] 1 EGLR 141 considered.
(3) An outline planning permission, where all or most matters were reserved, was a decision on the acceptability of the principle of development defined by that permission and gave flexibility on the details of the scheme which might subsequently come forward. But the outline permission would typically set the framework and terms (or parameters) within which those details might properly be proposed and approved in order to be authorised by that consent. The apparent flexibility of an outline permission might defer the stage when the Pilkington principle could in practice be applied, but where the physical impossibility test was satisfied, the severability issue arose, as in the case of a detailed planning permission.
The phasing arrangements were consistent with the grant of a single, integrated planning permission. They did not amount to a contra-indication pointing to severability of the phases. The nature of the phasing was specified in the grant of permission. That was relevant to the nature and scope of the development authorised by the OPP. Similarly, the description of the development permitted by the grant indicated maximum amounts of development types. The fact that the developer might build up to those amounts of development and might choose to build substantially less was consistent with the grant of a single, indivisible planning permission. Looking at the OPP and the submissions as a whole, there was no contra-indication, let alone a clear indication, that the OPP was severable: Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30; [2023] EGLR 4 applied.
(4) Accordingly, on its true construction, the OPP was not severable prior to the section 96A amendment. It was a single planning permission with provisions for phasing. To the extent that the amendment severed the OPP, it had the effect of disapplying the Pilkington principle, i.e. it made it unnecessary to apply the physical impossibility test to a future “material” departure from the development authorised by the grant of the OPP. It therefore significantly enlarged the bundle of rights granted by that permission. It followed that that was a “material” amendment for the purposes of section 96A and the defendant’s decision was ultra vires. The decision to amend the OPP would be quashed.
Jenny Wigley KC and Alex Shattock (instructed by the Public Interest Law Centre) appeared for the claimant; Melissa Murphy KC and Heather Sargent (instructed by Southwark London Borough Council) appeared for the defendant; James Strachan KC (instructed by Winckworth Sherwood LLP) appeared for the interested party.
Eileen O’Grady, barrister